Sunday, May 25, 2008

California's Majoritarian Difficulty

Over on FindLaw, my fellow columnist Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."Amar was kind enough to share his column with me before it went up, and in private correspondence he suggested that our difference may be simply over wording rather than substance. I agree that this is a possibility, but with that very caution in mind, I nevertheless want to stick with my formulation of the point. Note that in the line quoted above, I said that California law does not currently embrace the view that the term equal protection should be defined so as to treat as equal whatever arrangements the majority believes are desirable. Of course, if the California Constitution were to be amended to eliminate its equal protection clause or to make the principle of equal protection non-justiciable, then my statement would no longer be true.

Amar suggests that this is a semantic distinction because the existence of minority rights ultimately depends on the views of the majority. Amar is wrong when he says this point is true of "all constitutional law." Where a constitution can only be amended by a super-majoritarian process (as is true of the U.S. Constitution, for example), minority rights, once made part of the constitution, will remain a part of it even if there is majority opposition to them, so long as that majority does not become a sufficiently large super-majority.

But what about California, which permits constitutional amendment by simple majority vote in a referendum? Here, I want to suggest that the California constitution is actually defective. At some point in California history, the requirement of obtaining signatures reflecting 8% of the voters to put a constitutional amendment before the people probably acted as a significant filter. However, modern methods of politics---including paid petition staff---have made this a relatively easy task. Accordingly, the California Constitution can be amended very easily.

As I noted in my column, the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily "overrule" the Justices. Thus, there is no real "counter-majoritarian difficulty" in California.

There does, however, appear to be a "majoritarian difficulty" in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.

Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That's a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that's required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.

However one cashes out these questions in particular cases, it does seem that the one formulation we can categorically reject is Amar's. If you're going to have a constitution that functions as higher law at all, it can't depend on the will of the majority in the same way as ordinary legislation does.

17 comments:

You're right, Amar is wrong -- especially where he posits, "rights in our system are, and should be, the products of ultimately majoritarian processes."

B's natural right to his own life is (partially) dependent on A's willingness not to kill him. That is a metaphysical axiom completely independent of the secondary question of whether the society in which A & B live forbids, condones or celebrates murder. But that secondary question -- "forbids, condones or celebrates" -- does not define B's right; it only succeeds or fails in securing it.

A constitution attempts to reflect, but not does not define, what is proper and improper in a civilized society.

Different constitutions achieve this with greater or less success. To the extent that a constitution fails to achieve its purposes -- one of which must surely be "equal protection" (i.e., protecting insular minorities from the tyranny of the majority) -- it is defective.

You write: "Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend?"

I wonder if this is even something that can be achieved by design. For instance, we know that, in theory, there is a great counter-majoritarian difficulty with respect to the U.S. Supreme Court, but in practice, we know that its opinions have not deviated significantly from the majoritarian will. On the other hand, there may be courts of other systems that, in theory, confront a majoritarian difficulty, but in practice, legal culture and other values emerge to ensure that the opinions of the court are not always completely trumped by the majoritarian will. Legal structure interact with legal culture in a way that makes the end result unpredictable.

"One of the purposes of having a constitution is to limit majoritarian decisions."

Agreed, hence the federalists' concern with tyranny of the majority. But simply swapping that out with a tyranny of the minority -- whereby four judges can tell every single Californian what they (the citizens) consider a modern right, against overwhelming evidence to the contrary -- is no more acceptable.

One day conservatives will control the Supreme Court. That's simply the way politics work. When that happens, if the conservatives decide that they can govern the country by judicial fiat according to whim rather than either the text of the Constitution or the will of the people, will you complain about the results?

But what about California, which permits constitutional amendment by simple majority vote in a referendum? Here, I want to suggest that the California constitution is actually defective. At some point in California history, the requirement of obtaining signatures reflecting 8% of the voters to put a constitutional amendment before the people probably acted as a significant filter. However, modern methods of politics---including paid petition staff---have made this a relatively easy task. Accordingly, the California Constitution can be amended very easily.

Here, I want to suggest that you may simply be wrong. Unlike many other states' constitutions, California's constitution provides for initiative, recall, and referendum. It is a very progressive constitution that is intended and supposed to be a progressive constitution. Amending the California Constitution is supposed to be easy. Therefore, you are misconstruing it.

When four judges of the California Supreme Court interpret the California State constitution as requiring respect for the principle of equal protection as applied to gay marriage, they are not "governing by judicial fiat according to whim." They are explaining what equal protection, properly understood, actually requires, regardless of their own personal views (which may well clash with their interpretation of the relevant constitutional provision). This is not a tyranny of the minority: it is government by principle, which is fundamental to any constitutional system. If judicial conservatives end up in control, then I will want them to govern according to principle too. If they fail to do so, then I will complain, and loudly.

Here's a reply to Brezny:

It is true that the California initiative process was originally intended as a progressive check on a conservative legislature. But the initiative process has for many years been hijacked by special interests, and particularly by special interests hostile to progressive causes. Think of Prop 13 (limiting property taxes) and Prop 209 (banning affirmative action). Dorf is right. If a constitution can be amended by majority vote, then it is not doing what it is supposed to do, which is to limit the power of majorities.

"ultimately" is a huge qualifier. We too often forget that the Nazi Party came to power legally under the Weimar Constitution, which, regretabbly, contained a clause explaining how to suspend it. A grave mistake. But someone -- Alexander Hamilton? -- said that constitutions are not engraved on bronze but live in the hearts of men. Let's not delude ourselves into thinking that constitutions give minorities absolute security against heedless or hateful majorities.

Most may argue that voters have a basic understanding of fundamental human rights, as traditionally expressed in the Declaration of Independence and the Constitution and would only sparingly use their votes to curtail the attempts by other to maintain or gain rights, and only under the most dire of circumstances. But in times of fear and uncertainty, when an advantage at the poll might lead to an advantage in the pocketbook or increase a sense of security, all bets are off.

Thus, those who are inclined to support a marriage amendment to the California Constitution should recognize that the ability to change the Constitution must be applied with fear and trembling. This process can be easily abused, and a quid pro quo among competing interests could even now be in the development stage. If the marriage amendment passes, will advocates then seek to undermine the property interests of churches or the rights of religious workers? We know what is on the November 2008 ballot, but can only vaguely predict what we will see in 2009, 2010, and beyond.

I'm wondering if a Yes on Prop 8 vote would leave the California Constitution internally conflicted. On another blog it was noted that [begin quote] any attempt to overturn this decision by the initiative process would most likely be found to be unconstitutional as well based on the statement on page 6 of the decision as follows, "...we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."[end quote]

So what do people think? Would the equal protection clause of the constitution conflict with the proposed amendment to the constitution in such a fundamental way as to invalidate amending the constitution ala Prop 8, requiring (to be constitutional) a new version Prop 8 that amends other aspects of the constitution as well. Seems like a stretch, but I'm curious if anyone thinks there are legs to stand on with such an argument.